Understanding Standing

A lot of early press on the pledge case seemed to think a unanimous court believed that Mr. Newdow lacked standing to challenge the pledge recited daily in his daughter's school. Mr. Harvard Law, Dana Milhauser, at the New Republic thought so anyway:

Rather than rule on the substance of the issue, eight justices--the ninth, Antonin Scalia, had recused himself from the case--found that plaintiff Michael Newdow could not bring suit on behalf of his school-age daughter because he was not her custodial parent.

Such was not the case. Stevens (writer for the majority), Souter, Ginsberg, Breyer, and Kennedy dismissed on standing grounds. Rehnquist, O'Connor and Thomas all believed Newdow had standing, with Rehnquist writing out their joint opinion on that front. Each of these three went on to write (quite) diverging opinions as to why the 'under God' portion of the pledge does not violate the establishment clause (or, as we shall soon see in discussing Thomas, why it does violate the establishment clause...but why that doesn't matter).

Importantly, to the extent one buys Rehnquist's dissent on the standing issue, one wonders what the 5 Justices that dismissed on standing grounds were thinking. Here is my best shot:

Largely, Mr. Newdow lacks standing here because he cannot sue as his daughter's "next friend." This little term of art means a person that acts in court for the benefit of a child, or someone without legal rights. In the lower courts, it was established that the daughter's mother, Ms. Banning, has sole legal custody of the daughter. As such, the California Superior Court entered an order enjoining Newdow from including his daughter as an unnamed party or suing as her "next friend."

As such, Mr. Newdow no longer claimed to sue on behalf of his daughter; rather, his right to direct the religious upbringing of his child. The 9th Circuit Court of Appeals said he had standing, under Article III, to object to unconstitutional government action affecting his child.
Enter the Supreme Court, with this:

Even in cases concededly within our jurisdiction under Article III, we abide by "a series of rules under which [we have] avoided passing upon a large part of all the constitutional questions pressed upon [us] for decision."

So what is "standing" and why won't the Court allow cases where Article II of the Constitution says it can?
Here is Stevens:

Our standing jurisprudence contains two strands: Article III standing, which enforces the Constitution's case or controversy requirement, ... and prudential standing, which embodies "judicially self-imposed limits on the exercise of federal jurisdiction," ... The Article III limitations are familiar: The plaintiff must show that the conduct of which he complains has caused him to suffer an "injury in fact" that a favorable judgment will redress. Although we have not exhaustively defined the prudential dimensions of the standing doctrine, we have explained that prudential standing encompasses "the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked."

Stevens, with the majority, reverses this case on prudential standing grounds. And here, I am quite uncertain the judicial philosophy. Article II standing, quite clearly, addresses the plaintiff; asking, is this the right person to bring the suit? Is he the person injured, etc. But prudential standing seems to address the court--should the court hear this case?

One gets a sense of the main concern at the end of Stevens' opinion:

When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law. There is a vast difference between Newdow's right to communicate with his child--which both California law and the First Amendment recognize--and his claimed right to shield his daughter from influences to which she is exposed in school despite the terms of the custody order. We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court.

The talk that gets us here is heavy on Newdow's right to talk to his daughter about his atheism versus his power to direct third parties' actions.

What makes this case different is that Newdow's standing derives entirely from his relationship with his daughter, but he lacks the right to litigate as her next friend. . . . [T]he interests of this parent and this child are not parallel and, indeed, are potentially in conflict.
He wishes to forestall his daughter's exposure to religious ideas that her mother, who wields a form of veto power, endorses, and to use his parental status to challenge the influences to which his daughter may be exposed in school when he and Banning disagree. The California cases simply do not stand for the proposition that Newdow has a right to dictate to others what they may and may not say to his child respecting religion.

All clear? I'm undecided. For those standing scholars out there, this should be a fun addition to the pantheon of precedent, anyway.

Rehnquist, O'Connor and Thomas concur in the reversal of the 9th Cir., but believe Newdow in fact had standing. Thus, they get to the merits of the case and the rule on whether the 1955 addition violates the establishment clause. Here is the heart of Rehnquist's opinion on why standing should exist:

As alleged by respondent and as recognized by the Court of Appeals, respondent wishes to enjoin the School District from endorsing a form of religion inconsistent with his own views because he has a right to expose his daughter to those views without the State's placing its imprimatur on a particular religion. Under the Court of Appeals' construction of California law, Banning's "veto power" does not override respondent's right to challenge the pledge ceremony.
...
Respondent asserts that the School District's pledge ceremony infringes his right under California law to expose his daughter to his religious views. While she is intimately associated with the source of respondent's standing (the father-daughter relationship and respondent's rights thereunder), the daughter is not the source of respondent's standing; instead it is their relationship that provides respondent his standing, which is clear once respondent's interest is properly described. The Court's criticisms of the Court of Appeals' Article III standing decision and the prudential prohibition on third-party standing provide no basis for denying respondent standing.

Next Post(s): Rehnquist, O'Connor and Thomas on establishment.